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Discussing Homicide - muder - actus reus.

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Introduction

HOMICIDE 1. MURDER - ACTUS REUS The definition of murder is derived from the writing of the jurist Sir Edward Coke: 'Murder is when a [person]...unlawfully killeth...any reasonable creature in rerum natura under the Queen's peace, with malice aforethought...'. A bit of a mouthful, you may think! Anyway, let's look at actus reus of the wording - essentially, the unlawful killing of a human being - in a little detail. The word 'unlawfully' can be taken to exclude killings for which the accused has a complete and valid justification, such as killing in self-defence or in wartime. 'Killeth' or 'kills' means 'causes the death of', and I shall deal with causation soon. For the moment, take on board that murder is also a result crime and in accordance with the rule laid down by the House of Lords in R v MILLER [1983] 1 All ER 978 - HL (the cigarette that caused the fire) there is a duty to act in the face of a danger one has created oneself. 'Any reasonable creature in rerum natura' can be safely shortened to 'any human being'. This therefore excludes any 'baby' in a womb, so if death is caused before the child has an existence independent of its mother, there can be no murder. This is now settled law following the House of Lords' decision in ATTORNEY-GENERAL's REFERENCE (No. 3 of 1994) [1998] AC 245 HL. This leaves us with the question of what happens if a baby is born and later dies because of an attack on its mother by the defendant whilst in the womb.

Middle

Their actions did not break the chain because they were reasonable acts of self preservation or defence and/or because they were analogous to involuntary acts done in performance of a legal duty; and that, since shooting back at the defendant was a natural consequence of his having shot first, he remained responsible. I must confess that I find it difficult to see why the police response was a natural one foreseeable as likely to happen in the ordinary course of events or why it was a reasonable act of self preservation: the police could have withdrawn, surely? Clearly, the decision not to prosecute the police was a policy decision. The second exception to the rule is that if the defendant's conduct is not the operative cause of death but an abnormality in the victim is, then the defendant has committed the actus reus. So, if I chase you down the street and, due to a heart condition, you have a heart attack and die, then I have killed you. You see, the courts have always held that a defendant must take a victim subject to his physical and mental condition. In tort, this is known as the 'egg shell skull' principle. In short, a defendant must always take a victim as he finds him. A case that you may find astonishing here, is R v BLAUE (1975) 1 WLR 1411 - CA. The defendant had stabbed the victim 13 times, and she was rushed to hospital where doctors diagnosed a blood transfusion as being the only way to save her. The victim, a Jehovah's Witness, refused and consequently died.

Conclusion

Thinking the victim was dead, the defendants then rolled him over a cliff to fake an accident. The victim was alive when rolled over the cliff and died later from exposure. The defendants were found guilty of murder. So, what do we make of this case? Well, it seems that if death is caused during a series of acts as part of a pre-conceived plan, then the earlier mens rea is sufficient for a conviction. Inevitably, then, what if there is no earlier pre-conceived plan? It appears that the approach will be the same where the conduct which causes death was either undertaken in order to conceal the earlier conduct which was accompanied by mens rea; or where it is part of the same transaction, like FAGAN. You can see this in another 'disposal' case, R v LE BRUN (1991) 4 AER 673 - CA, where the defendant was found guilty when his conduct caused the death of his wife despite the fact that he lacked mens rea at the time that he killed her. He was guilty because, when he had hit her earlier, he had had mens rea and the act that caused her death was done in order to conceal his assault on her. OK, folks, well that is murder. However, if you're in a mood for some in depth thought about murder in the context of doctors going around wards injecting terminally ill patients with overdoses of pain relieving drugs in order to put them out of their misery (thereby creating extra bed space!), then read the article 'Summing up intention' NLJ August by Simon Cooper - it makes grim and thought provoking reading. In the next lecture we'll take a peek at manslaughter.

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